The UK Home Office Releases New Right to Work Checklist

Following the June 30 deadline for EU, EEA, and Swiss citizens living in the UK to apply for the EU Settlement Scheme, the UK Home Office has released the new guidance for employers to carry out right to work checks legally.

Key Points

Prior to today, July 1, employers could rely on their EU, EEA, and Swiss employees’ national ID cards and passports for the right to work checks.

From July 1 and onward, EU, EEA, and Swiss citizens will be required to prove their right to work with the same documents as other visa holders with biometric residence permits. Irish citizens will still be able to use their passports.

Documents Required

Employers will have to obtain original documents from either “List A” or “List B.”

• List A contains the range of documents acceptable for checking purposes for a person who has a permanent right to work in the UK. The prescribed right to work checks will establish a continuous statutory excuse for the duration of that person’s employment with the employer.
• List B contains the range of documents acceptable for checking purposes for a person who has a temporary right to work in the UK. The prescribed right to work checks will establish a time-limited statutory excuse. Employers will be required to carry out a follow-up check.

Online Checks & Continued COVID-19 Adjustments

The temporary COVID-19 adjusted right to work checks will now end on August 31, 2021. From September 1, 2021, employers will revert to face-to-face and physical document checks as set out in legislation and guidance. This will ensure employers have sufficient notice to put measures in place to enable face-to-face document checks.

Checks Prior to August 31, 2021

Where a right to work check has been conducted using the online service, the information is provided in real-time, directly from Home Office systems.

As part of the COVID-19 adjustments:

• Checks can be carried out over video calls.
• Job applicants and existing workers can send scanned documents or a photo of documents for checks using email or a mobile app rather than sending originals.
• Employers should use the Employer Checking Service if a prospective or existing employee cannot provide any of the accepted documents.
• Checks continue to be necessary, and employers must continue to check the prescribed documents set out in the right to work checks: an employer’s guide or use the online right to work checking service.

It remains an offense to knowingly employ anyone who does not have the right to work in the UK.

• If the online right to work check does not confirm that the individual has the right to work in the UK, the employer will not have established a statutory excuse.
• If an employer has reasonable cause to believe that the would-be employee does not have the right to work, and they employ them anyway, they risk being found guilty of a criminal offense.

Employers must retain evidence of the right to work check. For online checks, this should be the ‘profile’ page confirming the individual’s right to work. This page includes the individual’s photo and the date on which the check was conducted. Employers should store this securely (electronically or in hardcopy) for the duration of employment and two years afterward.

Checks from September 1, 2021, employers must either:

• check the applicant’s original documents, or
• check the applicant’s right to work online, if they’ve given you their share code

Employers do not need to carry out retrospective checks on those who had a COVID-19 adjusted check between March 30, 2020 and August 31, 2021 (inclusive).